Powers of Police under Section 498A IPC curtailed

Aug
10
2017


The Hon'ble Supreme Court of India in the matter of Rajesh Sharma Vs. State of UP, Criminal appeal no. 1265 of 2017, decided on 27th July, 2017 inter-alia gave the following guidelines in regard to registration of FIR under Section 498A IPC:

-Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today.




Difference between Mortgage by conditional sale and Sale with a condition to repurchase

Aug
10
2017


The Supreme Court of India in the matter of Bibi Fatima vs. M. Ahamed Hussain, Civil Appeal no. 7023/2012, decided on 1st August, 2017 opined on the question that whether a transaction is a mortgage by conditional sale or a sale with a condition of re-purchase and stated the method of gathering the underlying difference between the same. The Apex court held that the question has to be decided on the basis of interpretation of the document itself. The intention of the parties is a determining factor and the document.




Readiness and Willingness must continue through out the proceedings

Jul
31
2017


The Calcutta High Court in the matter of Amit Mondal Vs. Pannalal Das decided on 6th July, 2017 has held that Section 16(c) of the Specific Relief Act, provides that, in order to get a decree for specific performance of contract, Plaintiff is not only required to aver his readiness and willingness to purchase suit property all throughout in his pleadings but he is also required to prove his readiness and willingness to perform his part of obligations under contract all throughout in course of trial of suit. 




Sale of an immovable property can only be made by Registered instruments

Jul
31
2017


The Supreme Court in the matter of The Greater Bombay Co-operative Bank Limited vs. Nagraj Ganeshmal Jain decided on 26th July, 2017, being Civil Appeal Nos. 009777-009778 of 2017 has reiterated yet again that immoveable property can be transferred only by a Registered document. There can be no transfer of any right, title or interest in any immoveable property except by way of a registered document. An agreement to sell which is not a registered deed of conveyance would not meet the requirements of Section 54 and 55 of the Transfer of Property Act.




Eviction only when property sublet without the permission of the landlord.

Jul
31
2017


The Supreme Court in the matter Bhairon Sahai (D) vs. Bishamber Dayal (D) decided on 18th July, 2017, while dealing with a petition under Section 14(1)(b) of Delhi Rent Control Act 1958 has held that Eviction on the grounds of subletting can be sought by a landlord only where the tenant sublets, assigns or otherwise parts with possession without his consent. Parting with the possession of the premises without consent of the landlord was sufficient for eviction of the tenant without getting into the question of sub-letting or assignment.




INSIGHT TO NATIONAL COMPANY LAW TRIBUNAL #legalupdates

Jun
27
2017


The National Company Law Tribunal (NCLT) was established U/s 408 of The Companies Act, 2013. It was constituted on 1st June 2016 i.e. fourteen years after its introduction by amendment in the Companies Act in 2002 on recommendation of Eradi Committee. The Eradi Committee was set up under the chairmanship of Justice V. Balakrishna Eradi that presented a report on law relating to insolvency and winding up of the companies.

NCLT is a quasi- judicial body which adjudicates issues relating to companies registered in India. The constituting of NCLT resulted in dissolution of Company Law Board (CLB), Board for Industrial and Financial Reconstruction (BIFR) and the Appellate Authority for Industrial and Financial Reconstruction (AAIFR) after Sick Industrial Companies (Special provisions) Act, 1985 (SICA) was repealed. After dissolution the matters from CLB, BIFR, AAIFR are transferred to NCLT.

NCLT have exclusive Jurisdiction. Matters which are to be entertained by the Tribunal cannot be entertained by any civil courts across the country.

OBJECTIVE:

The National Company Law Tribunal came into existence due to the recommendation of the Eradi Committee. The committee recommended that there was need for establishing a National Tribunal as a specialised agency to deal with matters related to rehabilitation, revival and winding up of companies. It was constituted with the view to avoid multiplicity of fora.

The Tribunal is a specialised forum for resolving disputes and issues of company in India. Its primary objective was to provide a dispute resolving mechanism which is simpler, speedier only for corporate bodies and more accessible. It has ten regional benches in different states and aims at reducing multiplicity of litigation before different fora and courts relating to companies.

 

LAW APPLICABLE:

The law applicable in Tribunal include the Companies Act, 2013, the Insolvency and Bankruptcy Code, 2016 and the provisions of the Limitation Act, 1983. For certain limited purposes the NCLT is bound by the rules laid down by Code of Civil Procedure, 1908, as provided for in section 424 of the Companies Act, 2013.

 

 

 

COMPOSITION:

The NCLT comprises of the President, judicial and technical members as the Central government may deems fit. Justice Mahesh Mittal Kumar has been appointed as the President of NCLT. The President and members are appointed for a term of five years. At present there are fourteen judicial members and six technical members. The age bar for the President of Tribunal is sixty-seven years and for members, it is sixty-five years.

 

POWERS OF THE TRIBUNAL:

The Tribunal have the power to deal with those cases which were previously dealt with Company Law Tribunal, district court or High Court pertaining to Companies Act, 1956 as also BIFR and AAIFR. It includes proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies.

The powers of the Tribunal amongst others include power to

  • seek assistance from Metropolitan Magistrate
  • provide remedies
  • hear grievance of refusal of companies
  • transfer securities
  • ratification of register of members
  • protection of interest of various Stakeholders and Depositors
  • to investigate and initiate investigation proceeding.

 The Tribunal also have power to review its own order. The powers of Tribunal are briefly given under section 242 of Companies Act, 2013.

 

PENALTIES:

The violation of the norms given under Companies Act, 2013 by Indian companies is defined as offence with associated penalties. According to the section 441 of the Companies Act, 2013 the offences are punishable with fine. The Companies Act lay down maximum as well as minimum quantum of penalty for the particular offence. The authorities also have to take in consideration the size of company, nature of business, injury to public interest, nature and gravity of default and repetition of default while deciding the penalty.

 

 

 

BENCHES:

The Ministry for Corporate Affairs have set up total eleven benches of NCLT which includes one principal bench at New Delhi and regional bench at New Delhi, Allahabad, Ahmedabad, Bengaluru, Chennai, Chandigarh, Guwahati, Hyderabad, Kolkata and Mumbai.

The powers of the Tribunal shall be exercised by the Benches consisting of two members, one each from judicial and technical members. The Tribunal can authorise a single judicial member bench to exercise certain matters by general or special order. The special benches can be constituted by the President having three or more members with majority of judicial members.

 

JURISDICTION:

The territorial jurisdiction of the Tribunal across whole India is divided among the ten regional benches. These benches have jurisdiction in their particular state as well as nearby states and union territories. The jurisdictions of regional benches are as follow:

  • New Delhi bench: the Union Territory of Delhi, Rajasthan and Haryana.
  • Ahmedabad bench: Gujarat, Madhya Pradesh, Union Territory of Dadra and Nagar Haveli and Union Territory of Daman And Diu.
  • Allahabad bench: Uttar Pradesh and Uttarakhand.
  • Bengaluru bench: Karnataka.
  • Chandigarh bench: Punjab, Himachal Pradesh, Jammu and Kashmir and Union Territory of Chandigarh.
  • Chennai bench: Kerala, Tamil Nadu, Union Territory of Lakshadweep and Union Territory of Puducherry.
  • Guwahati bench: Arunachal Pradesh, Assam, Manipur, Mizoram, Meghalaya, Nagaland, Tripura and Sikkim.
  • Hyderabad bench: Andhra Pradesh and Telangana.
  • Kolkata: West Bengal, Bihar, Jharkhand, Odisha and Union Territory of Andaman and Nicobar Island. 
  • Mumbai: Maharashtra, Chhattisgarh and Goa.

The jurisdiction of the company who have paid capital of more than 50 lakhs and by special order by Honorable President NCLT lies with the principle bench New Delhi and the jurisdiction for the companies who had paid up capital up-to 50 lakhs lies with the regional benches.

 

APPEAL:

The appeal against the order of NCLT lies to the National Company Law Appellate Tribunal (NCLAT) according to the section 410 of Companies Act, 2013. An appeal against the order can be made within time period of forty-five days from the date of the order. The Appellant Tribunal have to dispose of the appeal within period of six months from the date of the receipt of the appeal. At present it consists of Chairperson and maximum of eleven judicial and technical members. Justice Sudhansu Jyoti Mukhopadhaya is the Chairperson of NCLAT. An appeal to the NCLAT is not maintainable if the order made at NCLT was passed with the consent of the parties.

 A person who is aggrieved by any order of the Appellant Tribunal may file an appeal in Supreme Court within sixty days from the date of the receipt of the order. The appeal from the CLB would continue to lie with the relevant High Courts.

The petition or appeal or application should be filed in English and in case they are of other Indian language than it should be accompanied by copy translated in English.

 

 

Sukriti Tripathi

Intern at The Chambers of Law

 




Provisions of Insolvency and Bankruptcy Code regarding time are not mandatory

May
11
2017


NCLT in the matter of J K Jute Mills Company Limited Vs Surendera Trading Company; Company Appeal (AT) No. 9 of 2017 compared the prescription of time limit prescribed under Section 7, 9 and 10 of Insolvency and Bankruptcy Code with provisions of Order 8 Rule 1 of CPC.




Court auction sale cannot be set aside just for asking

May
11
2017


The Supreme Court Chilamkurti Bala Subrahmanyam
vs. Samanthapudi Vijaya Lakshmi; Civil Appeal No. 5988 of 2007 has held that for setting aside a court auction sale a charge of fraud or material irregularity under Order 21 Rule 90 must be specifically made with sufficient particulars.  Before a sale can be set aside merely establishing a material irregularity or fraud will not do.



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